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Cite as: [1998] IESC 22

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Lynch v. O'Connor [1998] IESC 22 (29th July, 1998)

THE SUPREME COURT
Hamilton, C.J.
O’Flaherty, J
Barrington, J
Keane, J.
Murphy, J

BETWEEN
GEMMA LYNCH (AN INFANT SUING BY HER
MOTHER AND NEXT FRIEND PATRICIA LYNCH)
Plaintiff/Appellant
AND

HUBERT O’CONNOR
Defendant
AND

BRIAN DENHAM AND MICHAEL DOWLING

Defendants/Respondents
JUDGMENT delivered the 29th day of July 1998, by Keane, J. [Nem Diss.]

1. This is an action for damages for negligence and breach of duty brought against the first named defendant, who is an obstetrician, (hereafter “Dr. O’Connor”), the second named defendant who is a paediatrician (hereafter “Dr. Denham”) and the third named defendant, who is a nominee of the owners of

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2. Mount Carmel Hospital where the plaintiff was born on the 11th July 1980. During the course of the hearing in the High Court before Kinlen J, the claim against Dr. O’Connor was struck out by consent. In a reserved judgment. the learned High Court judge dismissed the claim against Dr. Denham and Mr. Dowling.


3. The plaintiff is the fourth of five children born to the mother and next friend and her husband. The third child, Garrett, who was born on the 17th February 1979, suffered from an extremely disabling form of the condition known as spina bifida and died within a few weeks of his birth. As a result of that tragic event, the mother joined the Spina Bifida Association of which she is still a member. She and her husband were also naturally concerned as to whether they should have any more children. They decided that they would like to have at least one more child and, when Mrs. Lynch became pregnant. she attended Dr. O’Connor as a private patient and decided to have the baby in Mount Carmel Hospital, also as a private patient.

4. The plaintiff was born late on the evening of the 11th July 1980 and her mother was told by Dr. O’Connor that “you have a lovely little girl, a perfect little girl”. He added that she had a “skin tag” on the back of her neck. Mrs. Lynch expressed her concern as to whether that had anything to do with spina bifida: she said in evidence that she was assured by Dr. O’Connor that it had

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not. but that the baby would be seen in any event by a paediatrician the following day.

5. Dr. Denham. who was the paediatrician on duty the following morning, examined each of the babies who had been delivered in the previous 24 hours and were in the neonatal nursery, including the plaintiff. The hospital chart, which recorded the fact that Mrs. Lynch’s third child had been born with spina bifida and had died within a few weeks, also included the results of Dr. Denham’s examination. The latter included the words “large tag midline neck, ligation”.


6. Following his examination of the plaintiff, Dr. Denham had a conversation with Mrs. Lynch in respect of which there was a conflict of evidence at the trial. It is not in dispute that Dr. Denham did in fact carry out the ligation procedure. The skin tag in question, it would seem, resembled a raisin with a very small stalk and the procedure carried out by Dr. Denham consisting of the tying of a very fine ethenyl suture around the base of the stalk. The effect of this was that the tag shrivelled up over the next few days and then fell off.


7. When the plaintiff was six weeks old, Mrs. Lynch brought her to her local clinic in Ballybrack for a check up, as she had done with her other children. The baby was examined by a paediatrician and a nurse who were told by Mrs. Lynch of the skin tag which had fallen off Neither the doctor nor the

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nurse expressed any concern to Mrs. Lynch after that examination. She underwent a further examination at the same clinic seven months later and again nothing was said by those who attended her at the clinic to indicate that her development was anything but normal.

8. The plaintiff started going to school for the first time in September 1984 when she was four years and three months old. When she had been there about six months, the teacher asked to see Mrs. Lynch and told her that she thought her daughter was unusually awkward in handling pencils and crayons and suggested that Mrs. Lynch might get some advice about it. Mrs Lynch then saw her general practitioner, Dr. Michael Flynn, who decided to refer the plaintiff to Professor Niall O’Donoghue, a paediatric neurologist at Crumlin Hospital. He diagnosed the plaintiff as suffering from spina bifida, but was also of the view that its manifestation in her case was at the moderate end of the range of that condition. He arranged for further investigations by x-rays (the MRI procedure was not available at that time) and they disclosed no abnormality. He also considered prescribing occupational therapy for the plaintiff.

9. Mrs. Lynch was naturally very distressed by this diagnosis, in the light of what had happened to her third baby. She arranged for the plaintiff to have occupational therapy through the Spina Bifida Association, but the plaintiff did not react well to this, since she was now over 5 years of age and resented the fact that she seemed to be unable to perform the sort of tasks set by the

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occupational therapist for younger children. Mrs. Lynch said that this had left the plaintiff with a dislike of seeing doctors. It should also be said that the ligation of the skin tag left a small hole, but this was convened into a scar when a neurosurgeon carried out an exploratory operation in October 1994. The scar is now concealed by the plaintiff’s hair.

10. The plaintiff at the date of the trial in the High Court was still having difficulty with a number of ordinary movements of the hands and fingers: she cannot use a knife and fork in the normal way and finds it difficult to button and zip up her clothes. Fortunately, it was agreed at the hearing in the High Court that in all other respects the plaintiff has developed perfectly normally and is now an intelligent and attractive young woman, obviously not least due to the admirable upbringing she has been given by her parents.


11. I should conclude this brief resume of the background to the case by pointing out that Mr. and Mrs. Lynch had a fifth child, Jonathan, who was born two years later, also in Mount Carmel, Dr. O’Connor being the obstetrician and Dr. Denham being the paediatrician concerned.


12. These proceedings were issued on the 28th November 1988. In the statement of claim, a number of allegations of negligence and breach of duty were made against Dr. Denham, but ultimately the case against him in the High Court consisted of an allegation that, although the previous family history of spina bifida and the presence of the stalk should have alerted him to the

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possibility of the plaintiff having a similar condition, he failed to ensure that the plaintiff was thereafter regularly monitored. As a result, it was claimed, the plaintiff did not receive the benefit of occupational therapy until her condition was diagnosed by Professor O’Donoghue and the therapy began at a stage when she derived significantly less benefit from it, hence leading to the permanent condition to which I already referred.

13. In her evidence in the High Court, Mrs. Lynch said that Dr. O’Connor had told her that there was a small skin tag on the back of the plaintiffs neck. She said that, once it had nothing to do with spina bifida, she was happy. He said that it had not but that he would have the paediatrician check it out the

next day. Her evidence continued (Transcript, Vol. 1, Q. 30):-

“Q. Yes. Can you tell his Lordship what did happen the next day?

A. I remember Dr. Denham coming to me the next day and saying that he had examined the baby and that it was not spina bifida. It was as Dr. O’Connor had said, a skin tag, and that he had put catgut round it and that it would fall off....

Her evidence continued at Q.32 as follows:-
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“Q. Mrs. Lynch. can you recall how long were you in hospital for?

A. I think I was in for 3 or 4 days.

33Q. During that period how many times would you have seen Dr. Denham?

A. I think I only saw him that morning. Then the day I was coming home with the baby, my husband and I were coming out of the ward and we met him in the hallway. He congratulated us and he again reassured me that the skin tag would fall off within a couple of days and that we would have a perfectly normal little girl.

34Q. May I ask you, Mrs. Lynch, did Dr. Denham then or at any other stage indicate to you that he wanted to review Gemma within six weeks?

A. No, he did not.

35Q. Are you absolutely certain of that?

A. I am absolutely certain that he did not.”
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14. In cross-examination, at Q.175 she was asked as follows:


“175Q. Did (Dr. Denham) say to you, Ms. Lynch that there was always the possibility of something hidden which should be investigated at a later stage?

A. No. He did not.

176Q. Or did he use the medical word “occult”. If he had used the word occult, would you have understood what that meant?

A. I think I would

177Q. Did he use that word to you?

A. No.

178Q. If he was talking to you about spina bifida, he would have been talking to somebody who had above average knowledge of the condition, isn’t that right?
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A. Yes.

]79Q. You would have understood it if he said there was always the possibility, a remote possibility of there being some occult condition there?

A. I would

180Q. Dr. Denham will say that he did mention that to you. He was not trying to alarm you but he did mention about the possibility. He did mention that to you?

A. No, he did not ...”

15. She was also questioned as follows at Q. 190:-


“Q. What I suggest to you that Dr. Denham said to you without alarming you to bring the baby back for a check up in six weeks?

A. No.

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191Q. Or to bring the baby for her six week check up, one way or the other?

A. No.

192Q. The other thing that Dr. Denham will say he mentioned to you was that there was a possibility that at the end of six weeks an x-ray might be done just to make sure there was no problem?

A. No.

193Q. No mention of an x-ray at all?

A. No, no mention.”

16. In his evidence, Dr. Denham said that he had told Mrs. Lynch that the plaintiff did not have spina bifida, but that she did have a large tag in the mid line on the back of her neck and that there were occult lesions, or hidden lesions, which could not be detected by any clinical examination and which could only be detected by x-rays, sometimes much later. (It should be observed at this stage that Dr. Denham in his evidence expressed his strong disagreement

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with the characterisation by Professor O'Donoahue of the condition diagnosed by him as ‘spina bifida’ and was of the view that this description should be reserved for the more seriously disabling condition.) He said that he had told Mrs. Lynch that she should bring the plaintiff back in six weeks at which stage she might have an x-ray. He said that his recollection of this arrangement was confirmed by a written entry in the hospital chart as follows:-

“Query x-ray later. RV six weeks.”

17. Dr. Denham said that about one quarter to one third of parents chose not to bring their children back to the hospital for the six weeks review, because they preferred to go to their family doctor or, as in Mrs. Lynch’s case, to a local health centre.


18. Dr. Denham’s evidence was that, after the discharge of the plaintiff he wrote letters to the plaintiff’s general practitioner, Dr. Flynn and the obstetrician, Dr. O’Connor, reporting on the health of the plaintiff. The letter, as received by Dr. O’Connor contained no reference to a further review of the baby. However, Dr. Denham’s evidence was that, while that while that letter was sent to Dr. O’Connor in error, he sent out a corrected version at the time to Dr. Flynn which ended with the sentence:

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“I will review the baby again and will consider an x-ray at that time.”

19. Dr. Flynn did not remember which letter he received and did not have them on his file.


20. A number of experts gave evidence at the trial on the question of whether, assuming that Mrs. Lynch’s evidence was to be preferred to that of Dr. Denham, his failure to ensure the further monitoring of the plaintiff’s condition resulted in her not having occupational therapy at an earlier age with the consequences to which I have already referred. Two occupational therapists, Ms. Rajnaratman and Ms. Breatnach, gave evidence that, in their opinion, had the plaintiff commenced attending occupational therapy in about the first year of her life, this would have made a significant difference to the difficulties she experienced. Professor O’Donoghue - who had been called as a witness on behalf of the plaintiff- said that, had he diagnosed her condition in 1980/1981, he would probably not have referred her on for occupational therapy: he added, however, that at that time Crumlin Hospital did not have an occupational therapist.

21. On behalf of the defendants, Dr. Owen Hensey, a paediatrician specialising in the physical rehabilitation of children, said in evidence that it was unlikely that earlier therapy would have made a significant difference to

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her current position. An occupational therapist. Ms. Marie Murray, gave evidence to the same effect.

22. A number of medical experts also gave evidence as to whether, assuming Dr. Denham’s evidence was to be preferred to that of Mrs. Lynch, he had taken the appropriate course in advising her to return in six weeks time so that, if it appeared desirable, an x-ray should be obtained: it was accepted by all who gave evidence that, in the light of his finding of the midline cervical lesion, it would have been unacceptable to take no action. On behalf of the plaintiff Mr. Thomas Fannin, a consultant neurosurgeon, and Professor McClure, a professor of neonatal medicine in Queen’s University, Belfast, were of the opinion that a paediatrician in 1980 in the situation of Dr. Denham should have referred the matter to a specialist with more specific expertise in the area, most probably a neurosurgeon. On behalf of the defendants, Mr. Fergus Donovan, a consultant neurosurgeon and Professor Matthews, a consultant paediatrician with a special interest in neonatology, were of the view that it would have been sufficient to keep the plaintiff under review and that it would not have been necessary to seek a more specialised opinion. There was also evidence to the effect that, whether or not the plaintiff was also seen by another expert such as a neurosurgeon, during the first year of her life, the imaging techniques then available to doctors would not have detected any abnormality and that, even if

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such had been identified, surgery would not have been appropriate for a baby of that age.

23. In his judgment, the learned High Court judge said:


“The court is satisfied that while other specialists of 1980 might have dealt with the matter in a different fashion that Dr Denham (as is now conceded by the plaintiff) did nothing wrong in ligating the tag. Should he have done anything about the blind sinus which was left? Should he have sent a reminder to Mrs. Lynch when she failed to turn up for her six week test? There was in 1980 no such follow up procedure and apparently there is not to this day. However, Mrs. Lynch knew about the six weeks and the 10 months examinations and they were carried out and no irregularity discovered. It would be an unjustifiable mental leap to suggest that Dr. Denham would have found differently on these occasions from the trained specialists who deal with these clinics. Indeed, it would appear from the evidence that many of these cases are not noticed until the child goes to school.”
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24. At a later stage in his judgment, having referred to the conflict of evidence as to whether occupational therapy would have been of benefit to the plaintiff if given at an earlier stage, he went on:


“However, is Dr. Denham to be blamed because the deficit was not noted until spotted by a teacher when (the plaintiff was about four and a half years old? The answer must be no. Therefore, I do not have to resolve the fascinating but difficult questions arising from this conflict of evidence. Everyone agreed that no amount of occupational therapy executed at any stage could have had any effect on improving the underlying physical disability which there is.”

25. At an earlier stage in his judgment, the learned trial judge had dealt with the conflict of evidence between Mrs. Lynch and Dr. Denham as follows:


“Dr. Denham gave very clear and positive evidence about warning Mrs. Lynch to return for the six weeks examination to him and that the nurses would have also told her. She has no recollection of any such conversation. However, the court does not have to
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resolve the problems raised by the two letters or the conflict of what was said or not said.”

26. The learned trial judge accordingly dismissed the plaintiff’s claim. From that decision, the plaintiff now appeals to this court.


27. While it was accepted on behalf of the plaintiff that, in the light of the findings of the learned trial judge, this court could not substitute for the High Court order an order finding Dr. Denham liable and remitting the case to the High Court for the assessment of damages, it was urged that, having regard to the evidence given at the trial and the findings of the learned trial judge, a new trial should be ordered on the issue of liability and damages. It was submitted that the trial judge should have resolved the acute conflict of evidence between Mrs. Lynch and Dr. Denham and that this was of critical importance, since it was agreed by all the expert witnesses that it would have been unacceptable for a paediatrician to have done nothing, having regard to the earlier history of spina bifida in the family and the skin tag. It was submitted that the trial judge was in error in finding that Mrs. Lynch simply had no recollection of the conversation of which Dr. Denham gave evidence: her evidence unequivocally to the effect that no such conversation had ever taken place.

28. If the trial judge had resolved that conflict of evidence in favour of Mrs. Lynch, it was accepted on behalf of Dr. Denham that this would have amounted

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to a finding that he had been in breach of his duty of care to the plaintiff. It followed from that concession, it was submitted, that Dr. Denham should have reviewed the plaintiff at least twice during the first year of her life and possibly again thereafter and that, if he had done so, the underlying condition might have been diagnosed. It was, accordingly, also of critical importance for the trial judge to resolve the conflict of expert evidence as to whether the giving of occupational therapy at an earlier stage would have been of benefit to the plaintiff.

29. It was also submitted that, if the trial judge had accepted Dr. Denham s evidence, he would then have had to resolve the further issue, i.e. as to whether the particular practice adopted by him of simply telling Mrs. Lynch that she should bring the plaintiff back in six weeks time was one which, even if approved by his colleagues of similar specialisation and skill at that time, had inherent defects which ought to have been obvious to him had he given the matter due consideration, citing the decision of this court in Dunne (An Infant) v. National Maternity Hospital [1989] 1R 91. That issue had not been resolved by the trial judge and on this ground also, it was submitted, there should be a retrial on the issues of liabilities and damages.


30. I have no doubt that it would have been preferable for the conflict of evidence between Mrs. Lynch and Dr. Denham to have been resolved by the trial judge. Since it was not, this court must approach the appeal on the basis


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that. if it had been resolved, the trial judge might have preferred Mrs. Lynch’s version of events to that of Dr. Denham. But it seems to me that the submissions on behalf of the plaintiff in this court that it follows from this and from the fact that other issues were left unresolved by the trial judge that there must be a new trial overlook a crucial feature of the case.

31. The uncontradicted evidence was that the plaintiff was examined at the Ballybrack Clinic at intervals of six weeks and 9 months respectively after her birth by a paediatrician and a nurse. They were aware of the skin tag and the fact that it had been ligated by Dr. Denham. It must be assumed that no abnormality was detected on those two examinations, since none was reported to the plaintiff There was also evidence that, had Dr. Denham continued to monitor the plaintiff thereafter, the degree of neurological deficit from which she was suffering would not have been detected at a stage significantly earlier than when it was in fact first noticed i.e. when she was four years and three months old. While it is right to say that Mrs. Lynch in evidence said that her mother said, when the plaintiff was nearly three years old, that she was not holding her spoon properly and feeding herself, this lady did not give evidence. In contrast, the evidence of Dr. Hensey (Transcript, Vol. 12 p.64) was:


“I felt that it was unlikely that the fine motor disturbance would have been identified before (the plaintiff) was at an age that she

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was actually doing a lot of fine motor activities and, typically in my experience this occurs in around the time the children start school at four to five years of age, perhaps a little earlier if children are attending pre-school which tends to be the situation nowadays. At that stage, once identified I felt the appropriate intervention would have been referral to an occupational therapist and, indeed, this was what happened in (the plaintiff’s) case.”

32. The evidence of Professor Matthews (Transcript, Vol. 11 p.99) was broadly to the same effect:


"...Even relatively severe problems cannot be noticed in the first year because babies are not using what you are looking for purposely.

393Q. If (the plaintiff) had got into the system at an earlier stage and been followed up at six months and a year and so on, at what point do you believe that her abnormalities would have been noticed and would have required treatment or action?
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A. It is very difficult to say but with problems with buttoning and unbuttoning, that sort of problem. usually towards school age, is usually noticed by the family members.

394Q. When you say ‘towards school age’, what school age do you mean?

A. I am talking about 3 or 4.”

33. A somewhat different emphasis was given by Dr. Mary King, a paediatric neurologist, who also gave evidence on behalf of the defendants and who said (Transcript, Vol. 13 Q. 165):-


“A. A year would be the earliest one would expect to find any deficit. That would be in the fine movement that you have heard about, the pincer movement where a baby at that age would be able to pick up a penny coin with a thumb and index finger. That would be impaired clearly at that time. Again, one would follow her up again to make sure this had improved or cleared up or if it persisted, then one would continue to monitor her.”

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34. The trial judge was undoubtedly entitled to find, as he did, that, having regard to the fact that no evidence of any deficit was apparent to the qualified persons who saw the plaintiff in the Ballybrack Clinic, it was unlikely that Dr. Denham would have come to any different conclusion had he carried out those examinations in the first year of the plaintiff’s life. The case, accordingly, made on behalf of the plaintiff on this appeal essentially rested on the proposition that Dr. Denham would have remained under a continuing duty to monitor the progress of the plaintiff for some indefinite period thereafter, even though there had been no indications of any abnormality. But even assuming that to be so, it is clear that the trial judge approached this aspect of the case on the basis that the probabilities were that the deficit would not have become apparent significantly earlier than the period at which it in fact first manifested itself i.e. when she was four years and three months old. Had the trial judge been of the view that, in the light of the evidence, the probabilities were that a continuous monitoring beyond the first year of her life would have identified the deficit at a significantly earlier age, he would have felt obliged to resolve the undoubted conflict of evidence as to whether occupational therapy at an earlier stage would have made any difference, having regard to the case being made on behalf of the plaintiff that Dr. Denham was under a continuing obligation to monitor the plaintiff even after her first year. As it was, the trial

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judge was perfectly entitled to conclude, as he did, that it was unnecessary to resolve that issue.

35. The same considerations apply to the submission that the trial judge should have resolved the issue as to whether the procedure which Dr. Denham adopted contained inherent defects which should have been obvious to a reasonable person. Even if one were to assume that it was such - a relatively large assumption - the same considerations would apply i.e. that a specialist review of the plaintiff, whether carried out by Dr. Denham or an expert in another discipline, would not have detected the underlying problem which emerged when she went to school.


36. Finally, it should be pointed out that, even if every assumption was made in favour of the plaintiff - that Mrs. Lynch was not told that the plaintiff should be reviewed in six weeks time because of the possibility of an underlying condition, that the deficit would have become apparent if she had reviewed into the second and third year of her life and that occupational therapy would have been of benefit if given at an earlier stage - the fact remains she was in fact reviewed by qualified experts in the Ballybrack Clinic at both the six weeks and the nine months stage. She was, accordingly, at that stage no longer under Dr. Denham’s care and the responsibility for ensuring that any further monitoring took place rested on them, to the extent that it rested on any one. It must be emphasised, of course, in conclusion that all of the assumptions

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to which I have referred were strenuously contested on Dr. Denham’s behalf throughout the hearing of this case.

37. I would dismiss the appeal.


© 1998 Irish Supreme Court


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